European Union (Withdrawal) Bill

Baroness Deech Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Baroness Deech (CB)]

My Lords, I deem it appropriate that I am speaking in the presence of my noble friend Lord Pannick and noble and learned friends Lord Judge and Lord Hope, because I am going to confine myself to Clause 5(4) and (5), which state that the European Charter of Fundamental Rights is not a part of domestic law on or after exit day.

The charter is a novelty, which has only been seen to apply directly in this country since 2013, as the UK, under Prime Minister Blair, signed up to Protocol 30 —an opt out. This opt out was ignored by the European Court of Justice, a warning of things to come. It started as a political declaration designed to give common values to the states of the EU and build a platform for more integration. It morphed into a document with legal status, as explained by the House of Commons European Security Committee report in 2014, The application of the EU Charter of Fundamental Rights in the UK: a State of Confusion. It recommended primary legislation to disapply the charter from the UK by way of an amendment to the European Communities Act 1972. When one reads the Commons report, explaining how the charter would broaden the ambit of EU law, its uncertain distinction between rights and principles, the hazy scope of its application and the effect of having parallel rights in the charter and the European Convention on Human Rights, it becomes clear in the end that the inclusion of the charter after Brexit would cause more confusion and less certainty for business, impinge on the sovereignty of Parliament in an unprecedented way, and could open the door to eternal subjection to the ECJ and EU legal supremacy. Maybe that is what the movers of amendments to keep the charter in place intend.

The charter was also intended to protect the citizen against overmighty EU institutions, not necessarily against his or her own state, for states have their own democratically enacted rights laws. This was explained by the noble and learned Lord, Lord Goldsmith, in his evidence to the aforementioned committee. The then Lord Chancellor, Mr Kenneth Clarke, was equally dismissive in his evidence to European Sub-Committee B in 2011, when he said,

“the charter … is of more political and public presentation … than it is of deep significance, because it does not actually change anything”.

It is odd that those who are now so determined to preserve it were once so clear-sighted about its insignificance. Yes, it has changed, but it has changed for the worse.

The charter is insignificant in another way, too. What a failure it has been in upholding—let alone extending—democracy and freedom in great swathes of Europe. Poland is undermining human rights and the rule of law. The latest Freedom House report slates many EU states for turning back from civil liberties and political rights. In Hungary, Austria, Croatia, Romania and other European states, judicial corruption, intolerance, xenophobia, racism, domestic violence and crime are on the rise. Extreme right-wing parties are on the march in Germany and Greece, and France has extended its state of emergency for the fifth time. So much for the efficacy of the charter. And it has happened on our watch.

This debate should be about our values. The EU puts a price on everything, but I do not discern its values. We have heard in this House that the Government do not know their destination. But what is the EU destination, save “more Europe” on the sat-nav and taking every road to the extreme right? No positive case could have been made for it during the referendum, because its failures in, inter alia, the euro and management of migrants demonstrate its lack of political virtue.

The most radical and dangerous element of retaining the charter is that it would uniquely give judges the power to disapply Acts of Parliament, not just declare them incompatible with human rights law, as is their remit under our Human Rights Act. If the charter is not removed from our law, our courts will be invited to limit or ignore existing law or EU incorporated law by reference to the list of rights—many of them vague, many of them simply aspirational, such as the independence of the elderly. I am pleased to note that my noble and learned friend Lord Brown supported this view.

We ought to be proud of our commitment to and long history of human rights and the rule of law in this country. Lord Reed explained in his famous judgment in the UNISON case in 2017 that the rule of law means that this Parliament makes our laws, its members are chosen and accountable to the people, and the courts enforce those laws. Brexit means that we return to that position and to our leadership in human rights.

We should ask ourselves whether each one of us feels that his or her rights are better protected by European law or by the Supreme Court. The core of the argument against inclusion of the charter is that it would bring into our law a set of rights and principles not enacted by Parliament—not subject to the usual debate and testing of public opinion—and its scope and meaning would change as it was interpreted by the European courts after Brexit, so we would be bound for all time by a set of norms over which we had no control and no part in shaping—a charter designed for an institution we had left. Those who are so determined to uphold parliamentary scrutiny by limiting Henry VIII powers ought also to appreciate that the inclusion of the charter keeps that king’s approach for ever.